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Weekly News Wrap: Monday, January 26, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

  • Top Ugandan rebel commander Dominic Ongwen is due to make his first appearance at the International Criminal Court (ICC) in The Hague today to face war crimes charges.
  • United Nations experts warned that Sudan’s remote western territories could become a breeding ground for radical Islamists as violence in the country’s conflict-torn Darfur region rages at an alarming level.
  • Boko Haram has launched a major offensive in Nigeria’s northeastern city of Maiduguri and the town of Monguno, engaging in fierce battles with the military.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Conservative Prime Minister Tony Abbott has awarded Australia’s highest honor to Prince Philip, husband of Queen Elizabeth, sparking a barrage of criticism across the country on its national day of celebration. The award grated with republicans who want to sever ties with Britain and appoint an Australian president.
  • Australia called on Indonesia on Friday to reconsider its decision to execute two Australians convicted of drug offences, a move that is likely to strain already fragile ties between the two neighbors.
  • The United States has agreed that Australian David Hicks, jailed on terrorism charges for five years at Guantanamo, is innocent, his lawyer said on Friday.

UN/World

  • A new round of U.N. talks between rival Libyan factions will take place in Geneva on Monday, the United Nations said, even as gunmen kidnapped the deputy foreign minister of the recognised government.
  • The World Health Organisation (WHO) has admitted that the Ebola outbreak in West Africa revealed “inadequacies and shortcomings” in how it responds to crises.
http://opiniojuris.org/2015/01/26/weekly-news-wrap-monday-january-26-2015/
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Weekend Roundup: January 17-23, 2015

by An Hertogen

This week on Opinio Juris, we hosted a symposium on International Law as Behavior, following a workshop at the University of Georgia in late 2014. Elena Baylis discussed the methodological, theoretical and conceptual questions that need to be grappled with when studying international law as behavior, while Galit Sarfaty provided insights from anthropology for the study of international law behavior. More specific issues were dealt with in posts by Jean Galbraith, who reflected on the use of deadlines in international law, Tim Meyer, who described instances of epistemic cooperation as a way of encouraging states to coordinate their behavior, and Harlan Cohen, who addressed the puzzling phenomenon of precedent in international law. Tomer Broude applied behavioural theory to the ongoing negotiations on the Trade in Services Agreement (TiSA), and Harlan Cohen closed the symposium with reflections on the agenda for the study of international law as behavior.

The Palestinian ratification of the Rome Statute and its article 12(3) declaration was the subject of extensive commentary. Kevin disagreed with Nimrod Karin’s posts on Just Security that these steps amount to “lawfare”. He also argued why an investigation into Arafat’s death would be problematic. The issues of settlements in the West Bank was discussed in Ido Rosenzweig’s guest post and by Kevin who explained why the Palestinian Authority cannot use an ICC investigation as leverage to freeze settlement construction.

Foreign affairs law issues came up in Peter’s discussion of the constitutionality of Boehner’s invite to Netanyahu in light of precedents where the Logan Act was invoked, Julian’s argument that President Obama needs congressional approval to lift the trade embargo on Cuba, and Julian’s analysis whether a US-Iranian nuclear deal should take the form of an article II treaty with its requirement of congressional approval.

In other posts,  Fox News came under fire from Kevin for its report on Paris’ “no-go” zones and from Deborah over its factual inaccuracies in reports on Muslims in the UK and France. Kristen updated us on the Haiti Cholera case where the SDNY upheld the UN’s immunity, and Kevin posted a youtube video of a protest song on Australia’s detention centre on Manus Island

Finally, Jessica wrapped up the international news headlines and I rounded up the events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2015/01/24/weekend-roundup-january-17-23-2015/
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International Law as Behavior Symposium: An Agenda

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

What is the study of “International Law as Behavior”?  At the workshop in November, Elena Baylis, Tomer Broude, Galit Sarfaty, Jean Galbraith, and Tim Meyer (whose chapters/presentations were described earlier) were joined by Kathryn Sikkink, who presented on the role of agency in constructivism, Ron Levi and Sungjoon Cho, who drew upon sociology to study the “fields” of international criminal law and international human rights practice and the social structure of the WTO, respectively, Adam Chilton, who presented on the potential of experimental methods for studying human rights, and Anne van Aaken, who explored behavioral law and economics’ implications for international legal theory.  What, if anything, binds these ten projects together?  Are there lessons to be learned about how these projects and methods can fit together into some greater whole?  These will be topics discussed in the book arising out of this project, but for now, a few thoughts on ways forward.

It can be tempting to see these projects as puzzle pieces, which when assembled in the correct order, reveal a larger picture of the international order. Each brings its own insights: Rational choice sets up testable, generalizable hypotheses about how states might interact given express assumptions about state behavior. Sociology, anthropology, and behavioral law and economics can test those hypotheses against real world scenarios, explaining why specific situations diverge from those expectations, whether as a result of social structures, culture, or human psychology. Experimental methods can help identify the actual preferences of international actors. Constructivist accounts can build upon sociology, anthropology, and psychology to explain where state preferences come from and how they change. Focused primarily on different, overlapping units of analysis—individual actors, the communities in which they practice, the culture in which their embedded, the states on behalf of whom they act, and the larger structures in which those states are embedded, these approaches might seem like natural complements—snapshots taken from one angle, which when spliced together might provide a panoramic view of the international system. Together, these accounts might provide a more complex account of the different processes, preferences, beliefs, and incentives that might drive the vast array of actors who operate in international law, whether grass-root activists, transnational norm advocates, technocratic experts, politicians, bureaucratic careerists, or diplomats. Where these levers converge or diverge may help explain both the emergence of consensus over rules and continued contestation. Successful strategies for achieving particular international goals will flip all the right switches.

But imagining all of these accounts as different harmonies converging in one glorious tune is too simplistic and overly optimistic; (more…)

http://opiniojuris.org/2015/01/21/international-law-behavior-symposium-agenda/
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International Law as Behavior Symposium: Playing the Negotiated Choice Architecture Game – Negative/Positive Listing in Services Trade Agreements

by Tomer Broude

[Tomer Broude is Vice-Dean and Sylvan M. Cohen Chair in Law at the Faculty of Law and Department of International Relations at the Hebrew University of Jerusalem.]

How do negotiators of international treaty regimes engage with the ‘choice architecture’ inherent in the treaties they design? Are they aware of their own susceptibility to cognitive biases and do they take into account the behavioral weaknesses of their counterparts and constituencies? Jean Galbraith’s excellent study on human rights treaty flexibility cast light on this question, very neatly demonstrating on the basis of quantitative research that opt-in/opt-out provisions in treaties have significantly differential effects on subsequent choices. In a paper I am writing with Dr. Shai Moses (a former negotiator and affiliated with the Université de Genève) for a forthcoming handbook on trade in services (edited by Martin Roy and Pierre Sauvé), we explore the behavioral dynamics of negotiated choice architecture in the context of international services trade liberalization, and in particular in the ongoing negotiations towards a plurilateral Trade in Services Agreement (TiSA). Here are some of our initial observations on what seems to be going on in Geneva, from a behavioral perspective.

Negative/Positive Listing in Services Liberalization: The Rational Choice Puzzle

(more…)

http://opiniojuris.org/2015/01/21/international-law-behavior-symposium-playing-negotiated-choice-architecture-game-negativepositive-listing-services-trade-agreements/
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International Law as Behavior Symposium: The Sociology of International Precedent

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

The Precedent Puzzle

Every year, the Jessup team at the University of Georgia comes to me for a crash course in international law, and every year, I carefully explain to them that they can’t simply argue from precedents (as they would in their other moot court competitions), even precedents from the International Court of Justice, because precedent is not a source of law in international law as it is in domestic law. Nonetheless, I tell them—they, and their opponents, and the judges, will argue from precedent, from the ICJ and beyond, just as everyone in international law does. The trick, I tell them, is to be able explain why the supposedly irrelevant really is relevant.

This is emblematic. On the one hand, we are taught that as a matter of doctrine, judicial decisions construing international law are not in and of themselves law; they are not generally binding on future parties in future cases, even before the same tribunal. On the other hand, we also know that precedent is ubiquitous—from international arbitration, to international criminal law, to international human rights, precedents are argued and applied.

It’s not just that courts and tribunals cite their own precedent. On the contrary, courts and tribunals regularly cite the decisions of other unrelated ones: The precedents from one regional body are argued to others; precedents from human rights courts are argued to investment tribunals; precedents from ad hoc criminal tribunals are applied to domestic civil judgments. Nor is this phenomenon limited to arguments from, to, or in the shadow of international tribunals. The invocation of tribunal decisions as precedent has become part of the fabric of international legal discourse, structuring everyday arguments over the meaning of international law rules even far outside the shadow of any court. Russian and Crimean political leaders invoke the ICJ’s Advisory Opinion on Kosovo’s declaration of independence as precedent for the legality of Crimea’s secession and absorption into Russia. Advocacy groups like Human Rights Watch invoke ICTY decisions in open letters to governments on the legality of tactics used to fight terrorist groups. Academics invoke ICJ decisions in debates over the legality of the use of force against non-state actors. And perhaps most surprisingly, the Department of Justice responds to decisions of the ICTY, European Court of Human Rights, and the U.N. Committee Against Torture in internal, confidential government memoranda. Together with other interpretations of international law by expert committees, by international organizations, or by states, these decisions vie for status as authoritative statements of what international law requires.

But if this puzzling phenomenon is ubiquitous and even widely recognized, it has nonetheless, remained largely unexplained. Why, in the absence of any doctrinal requirement (in some cases, even permission), do some interpretations of international law by some courts, tribunals, or other bodies take on the force of precedent? Why do some interpretations come to be seen as authoritative, allowing some actors to wield them and forcing others to respond?

(more…)

http://opiniojuris.org/2015/01/20/international-law-behavior-symposium-sociology-international-precedent/
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International Law as Behavior Symposium: Studying International Law as Behavior

by Elena Baylis

[Elena Baylis is Associate Professor of Law at the University of Pittsburgh]

In my role as commentator for the in-person symposium that preceded this online symposium, I took on the task of identifying common themes among the symposium papers. This essay focuses on a few of the ideas drawn from the papers as a whole.

Treating international law as behavior engenders several kinds of complexity centered on a set of classic epistemological questions: what do we know and how do we know it? By using theoretical and methodological approaches drawn from sociology, anthropology, international relations, and other disciplines, we can observe aspects of international legal behavior that are not accessible through traditional legal analysis. The symposium participants describe international legal actions such as development of expertise, engagement with deadlines, and epistemic cooperation, by a wide variety of actors, including individuals, institutions, organizations, states and divisions thereof, and networks and communities. Even apart from the value of the analysis developed to explain and categorize this behavior, there is some satisfaction simply in exposing these many actors and modes of action to our view. However, doing so requires grappling with difficult methodological, theoretical, and conceptual questions.

(more…)

http://opiniojuris.org/2015/01/20/international-law-behavior-symposium-studying-international-law-behavior/
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International Law as Behaviour Symposium: Epistemic Cooperation

by Tim Meyer

[Tim Meyer is an Associate Professor of Law at the University of Georgia School of Law.]

For the last several decades, the central problem in much institutionalist scholarship has been how to design what I refer to as credible commitment regimes. Such regimes establish, or create fora in which states can later establish, substantive rules of conduct to coordinate state behavior across an increasingly wide range of issues. On the assumption that rational, self-interested states will cheat on these conduct rules if it is in their interest to do so, credible commitment regimes also create enforcement mechanisms to alter state incentives. Monitoring, verification, and dispute resolution mechanisms publicize violations, authorize retaliation, and in some instances award monetary damages. For example, the WTO agreements establish rules on the kinds of limits states may place on international trade. The WTO also creates the Dispute Settlement Body, which serves as a vehicle to further clarify the content of those rules, publicize violations, and reduce the cost of retaliation by defining when it is legally permissible.

Below the radar, however, a class of international agreements have emerged that seek to coordinate state behavior through the production and regulation of information, rather than the creation of credible commitments. Following a robust literature on epistemic communities, I refer to these international regimes as epistemic institutions or epistemic agreements, and the phenomenon as epistemic cooperation. In its purest form, epistemic cooperation does not legally require states to take action on the regulated issue. Instead, it merely requires them to produce and share information with each other. The aim is to encourage states to coordinate their activities based on this information, rather than based on a legal rule made credible through international institutions.

Examples of epistemic institutions that work in this way abound. (more…)

http://opiniojuris.org/2015/01/20/international-law-behaviour-epistemic-cooperation/
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International Law as Behavior Symposium: TIME’S UP – Deadlines as Behavior in International Law

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School]

One mechanism through which international law regulates the behavior of states and other actors is deadlines.   Although little studied, deadlines appear throughout international law, especially in treaty regimes. Drawing on a future book chapter, in this post I describe some of the roles played by deadlines in international law. I also consider what insights research on the use of deadlines in domestic contexts might have for good and bad ways to use deadlines in international law.

Uses of Deadlines in International Law

Deadlines occur throughout international legal practice. We find them in the negotiation of treaties; in relation to the signature and ratification of treaties; in the provisions of treaties; in exchanges among nations and other actors regarding international legal obligations; and in the functioning of international organizations and tribunals.

Deadlines can have quite different international legal effects. Some deadlines are purely political, such as many deadlines in negotiations. Other deadlines set limits on access to legal opportunities, like the date a treaty closes for signature. Still other deadlines mark the legal boundary between compliance and non-compliance with obligations under international law, such as substantive or reporting deadlines written into treaties.

For examples of these different kinds of deadlines, consider the Chemical Weapons Convention. Negotiating deadlines were used during its creation. Its entry-into-force date served as the date that the Convention closed for signature, triggering several last-minute signatures. This date also served as a symbolic deadline that galvanized the advice-and-consent process in the U.S. Senate. The content of the Convention itself is also laden with deadlines. To take one prominent example, the Convention requires parties to complete destruction of their chemical weapons within ten years of the Convention’s entry into force – with the possibility of an additional extension of up to five years. The United States and Russia have overshot this deadline and are therefore in violation of their obligations. Finally, deadlines feature in the work of the international organization created by the Chemical Weapons Convention (the OPCW), as with its recent use of deadlines in relation to Syria.

As this example suggests, deadlines can prove hugely important to international law. Yet they have received little attention for legal scholars. Given how integral deadlines can be to the functioning of treaty regimes, it is important to think about they can be best deployed.

Deadlines and Behavior: Some Insights from Domestic Research

Although deadlines have received little study in international law, scholars have studied deadlines in lots of other contexts. As examples, consider the following findings:  (more…)

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-times-deadlines-behavior-international-law/
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International Law as Behavior Symposium: Toward an Anthropology of International Law

by Galit A. Sarfaty

[Galit A. Sarfaty is the Canada Research Chair in Global Economic Governance and Assistant Professor at the Faculty of Law, University of British Columbia]

With the growing importance of global legal institutions, new forms of global law, and transnational social movements around legal issues, anthropologists are studying the multiplicity of sites where international law operates. Scholars have examined the practices of international courts and tribunals and their conceptions of justice in relation to those of local communities. They have studied the global impact of law-oriented nongovernmental organizations on postcolonial consciousness. They have also analyzed the production of international treaties by transnational elites and their localization and translation on the ground. Given the critical need to uncover how international law is produced and operates in practice, legal scholars can gain insights from anthropological literature and adopt ethnographic tools in their own analysis. As I will outline below, anthropology offers unique insights in understanding international law behavior.

What is an Anthropological Approach to International Law

Anthropological theory and methods enables the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level. Through ethnographic research, anthropologists analyze individual actions, systems of meaning, power dynamics, and the political and economic contexts that shape the operation of international law. They recognize disjunctures between how laws are written and how they are implemented on the ground, as well as further variations in how they affect different communities. In the context of Harold Koh’s transnational legal process theory of norm compliance, an anthropological approach sheds light on the norm emergence and internalization phases by which international norms penetrate domestic legal systems on the local level.

Ethnographic research involves case-oriented study, including long-term fieldwork and in-depth interviews. In the context of studying international law, fieldwork is frequently multi-sited to allow researchers to analyze such phenomena as the transnational circulation of global norms and local settings where multiple legal orders intersect—or what scholars call “global legal pluralism.” By tracking the flow of laws, institutions, people, and ideas across locales and jurisdictions, multi-sited “deterritorialized” ethnography is a useful tool in the study of international law.

Anthropological research aims at answering a question rather than testing a hypothesis. Unlike other methods, it is not based on prior assumptions or models. Rather, hypotheses and theories emerge from the data, and are constantly evaluated and adjusted as the research progresses. Interviews are usually unstructured or semi-structured with open-ended questions developed in response to observations and ongoing analysis. The questions are designed to seek respondents’ interpretations of what is happening and allow them to describe problems, policy solutions, and their rationales in their own words.

What Anthropologists of International Law Study

While there are numerous areas of focus for anthropologists of international law, I will very briefly highlight a few important ones here: (i) the cultures of international organizations and international tribunals; (ii) the transnational circulation and localization of international legal norms; and (iii) the knowledge practices and technologies of governance in international law.

The Cultures of International Organizations and International Tribunals

(more…)

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-toward-anthropology-international-law/
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International Law as Behavior Symposium: An Introduction

by Harlan Cohen

[Harlan Cohen is an Associate Professor of Law at the University of Georgia School of Law]

This past November, the University of Georgia School of Law and the ASIL International Legal Theory Interest Group convened a book workshop on “International Law as Behavior,” at Tillar House, ASIL’s headquarters in Washington, DC. The workshop brought together scholars working in variety of different fields, including anthropology, behavioral law and economics, constructivist international relations theory, organizations theory, rational choice, social psychology, and sociology, to discuss how these approaches might best be applied to the study of international law, how these approaches can complement each other, the opportunities and challenges of working across these fields, and the development of a common language and tools to study how international actors actually behave. Participants included Anne van Aaken (University of St. Gallen), Elena Baylis (University of Pittsburgh School of Law), Tomer Broude (Hebrew University Faculty of Law), Adam Chilton (University of Chicago School of Law), Sungjoon Cho (IIT Chicago-Kent College of Law), Jean Galbraith (University of Pennsylvania Law School), Ron Levi (University of Toronto Global Affairs and Sociology), Tim Meyer (University of Georgia School of Law), Galit Sarfaty (University of British Columbia Faculty of Law), and Kathryn Sikkink (Harvard Kennedy School). A book based on presentations at the workshop that I will be editing will follow.

The workshop and book arise out of an intuition that there is more international legal scholars can learn from sophisticated work on legal behavior developing in other disciplines and more that scholars drawing on those disciplines can learn from each other. International law and legal scholars have long borrowed from a variety of disciplines to help understand the functioning of the international system. Important work on international law, including work of the New Haven and English Schools, has drawn on Law & Society, Anthropology, Constructivism, Linguistics, and Sociology. Drawing on international relations and economics, scholars have invoked principles of rational design to explain the shape of international agreements and international organizations and the choice between hard and soft law. Economic analysis has helped explain cooperation and compliance. Most recently, international law scholars have begun to draw insights from behavioral law and economics and psychology.

Instead of informing and enriching each other, however, these varied approaches have often developed in parallel and isolation, siloed off from the insights of the others. Drawing from distinct fields with their own languages and methods, scholars pursuing these approaches have often ended up talking past each other – if they spoke to each other at all. (There are obviously exceptions to these trends, including contributors to this project; readers of these posts know who you are.) The goal of this workshop and the edited volume to follow is to begin to bridge those gaps and foster the conversation between methods and approaches that might form the foundation for a study of international law as behavior. How do international actors actually behave and what drives their behavior? How and when is their rationality bounded by psychology? How do they operate as members of groups and recipients of culture? How do they write and follow organizational scripts? Dialogue between these approaches should only help to enrich all of them, suggesting new paths, blindspots, and even wrong-turns for each. Some of these methods will fit together well; others, whether because of initial assumptions or research styles and demands, may not. And, different approaches may have an advantage depending on the specific questions about international behavior being asked. But it is exactly these questions that we hope to explore.

Over the next few days, Galit Sarfaty, Jean Galbraith, Tim Meyer, Elena Baylis, Tomer Broude and I hope to give you a flavor of the presentations and conversations at the November workshop. Thank you to Opinio Juris for allowing us to showcase some of this project here. We look forward to hearing your thoughts and to kicking off Opinio Juris’ tenth year in style!

http://opiniojuris.org/2015/01/19/international-law-behavior-symposium-introduction/
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Weekly News Wrap: Monday, January 19, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • A delegation of US congressional Democrats began a three-day visit to Cuba to discuss expectations for the normalisation of relations between the United States and the island nation.

UN/World

http://opiniojuris.org/2015/01/19/weekly-news-wrap-monday-january-19-2015/
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Weekend Roundup: January 17, 2015

by Jessica Dorsey

This week, we celebrated Opinio Juris’ 10th anniversary, with our permabloggers weighing in with their thoughts on the last decade of blogging. Julian kicked the discussion off with how the legal blogosphere has changed over the last ten years. Roger reflected on blogging and the marketplace of ideas. In Peter’s musings, he explored the evolution of international law as well as the role blogging has played and will play in the future. Duncan shared nine realizations that he has made over the last decade through blogging and teaching. Making international law no longer the invisible college but visible and accessible was at the heart of Peggy’s contribution.

Chris asked about the must-reads and key scholarly texts in international law over the last decade. Through tracing her own journey into international law, Deborah thanked Opinio Juris and the readers for the conversation. Kevin reflected on how blogging enhanced his career, and helped him to develop into the nicer, kinder blog version of himself he is today. Jens touched on the real-world impact blogging can and does have, while hoping for a continued discourse. Kristin capped the joviality off by wishing the blog a happy birthday and looking forward to the continued discussion.

Other contributions of note this week were two guest posts. The first from Rebecca Hamilton posed the question: When should the ICC call it quits? The second, by Oliver Windridge, was a great overview of the activities of the African Court of Human and Peoples’ Rights from 2014.

Duncan congratulated Dean Andrew Guzman on his new appointment at USC’s Gould School of Law and Kevin pondered the case of Roger Ver and whether renouncing US citizenship for “selfish economic reasons” makes you a bad person. And as usual, I wrapped up the week’s headlines and posted Events and Announcements.

Thanks for following us this week, and over the last decade. We’re very grateful to you readers for being part of the development of Opinio Juris and hope that the conversation continues far into the future.

http://opiniojuris.org/2015/01/17/weekend-roundup-january-17-2015/
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